SHAIK MD SHAFFI BARRY Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) ONE Muhammad Ibrahim Barry, now deceased, was a man of property. During his lifetime, he dedicated two premises belonging to him, namely, premises No. 11, Lindsay Street, and No. 8, Kanai Seal Street, Calcutta, as wakf property, under a deed of wakf dt. 5th Feb., 1927. By another deed, dt. 22nd June, 1930, the said Muhammad Ibrahim Barry appointed the petitioner as mutawali to the wakf estate. In addition to the properties dedicated as wakf, the said Muhammad Ibrahim Barry had other properties which were his personal properties. Muhammad Ibrahim Barry died in January, 1937.

(2.) FOR the asst. yrs. 1958-59 to 1960-61, the ITO, "D" Ward, District III(2), Calcutta, added the income from the personal properties left by the Muhammad Ibrahim Barry to the income of the wakf properties and made an assessment on the total income. That assessment was set aside on appeal and the AAC, by an order dt. 29th Dec., 1962, directed that the income from the wakf properties should be separately assessed.

(3.) IN support of his contention that the ITO was bound to give his reasons, Mr. Mukherjee drew my attention, firstly, to what Thaver Brothers (1934) 2 ITR 230 (Rang). circumstances of the case. Since that was not done Mr. Mukherjee contended, there was an error apparent on the face of the record which would justify me in quashing the assessment order. I am unable to uphold this argument also. The maximum rate of tax may have been correctly applied on the assessment. There is nothing to show from the record that the application of the maximum rate must have been wrongly done. If the assessment had been challenged in appeal, the onus would have been on the taxing authority to justify the computation of tax at the maximum rate, in the facts and circumstances of the case. If the taxing authority failed there, the assessment of tax might have been set aside. Regard being had to the scope of this rule, I cannot hold that the failure to indicate the reasons for assessment at the maximum rate constitutes such an infirmity in the order that it must be quashed. I, therefore, discharge this rule but make no order as to costs.